In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard. . . .

If there are rules for or against using any type of technology in a courtroom, you will normally find the court’s preference in its local rules. Courts don’t write local rules just for fun. They mean it when they say they don’t like something. If your court clearly states in its local rules that certain types of technology are not tolerated, don’t temp fate by assuming that you will be the exception.

Please note the comments at the end of the article. There is more valuable information about other court rules. -CCE

There are countless ways that an iPhone and iPad can be useful to an attorney while in court — whether you are at counsel table or just monitoring proceedings from the cheap seats in back. I often use my iPhone to look up a statute, check my calendar, get some information from an email, or remind myself of the name of another attorney in the courtroom. I often use my iPad to look at a case cited by an opponent, review the key part of an exhibit or transcript, or take notes. But you cannot do any of this unless the court lets you use electronic devices in the courtroom. I remember a time many years ago when the Eastern District of Louisiana did not allow any cell phones, even if turned off, and if my Palm Treo was still in my pocket, I had to walk back to my office, a few blocks away, and leave it there. Many courts are now more lenient, but attorneys should not just assume that it is okay to plan to use an iPhone and iPad in court. Instead, it is wise to first determine if there is an applicable court rule on the issue.

I write about this today because Ray Ward, an appellate attorney at my law firm, has a case that is soon set for oral argument before the U.S. Fifth Circuit, and in connection with that case, yesterday he received a notice from the Fifth Circuit of a new policy on electronic devices in the courtroom. Ray wrote about the notice (and attached a copy) in this post on his Louisiana Civil Appeals blog. In short, you can now have an iPhone or iPad in the courtroom, but it must be turned off unless you are presenting argument or at counsel table. And even then, you cannot take pictures or video, nor can you use social media. . . .

The panel affirms suppression of drugs found during a traffic stop in Louisiana. The car with a California license plate was occupied by three people on a cross-country trip from California to Miami. Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented. Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.

Typically, consent to search a vehicle applies to any unlocked containers within it. However, ‘[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.’ ‘Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.’ The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk.

While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it. Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts ‘harmonize’ language from different parts of an agreement or from multiple agreements.

The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: ‘if the dispute is not resolved through mediation, the parties may submit the controversy or claim to Arbitration. If the parties agree to arbitration, the following will apply…’ The party fighting arbitration (a city in South Dakota) argued the quoted language does not mandate arbitration, it makes arbitration an option for the parties, so the case should remain in court. [Emphasis in original.]

The party seeking arbitration emphasized a sentence at the end of the arbitration paragraph saying that the arbitrator’s ‘decision shall be a condition precedent to any right of legal action.’ It argued that the only way to harmonize that language is to conclude that arbitration is required. The court disagreed, finding that a reasonable interpretation is simply that if the parties decided to arbitrate, the arbitration decision is a condition precedent to further legal action. Quam Construction Co., Inc. v. City of Redfield, ___ F.3d___, 2014 WL 5334781 (8th Cir. Oct. 21, 2014). Therefore, the Eighth Circuit affirmed the district court’s denial of the motion to compel arbitration.

The Fifth Circuit had a harder case in Sharpe v. AmeriPlan Corp., __ F.3d__, 2014 WL 5293707 (5th Cir. Oct. 16, 2014). In that case, three former sales directors of a company sued for breach of contract after they were terminated. The company moved to compel arbitration and the district court granted the motion.

Their original employment agreements with the company did not call for arbitration, in fact they set the venue for legal proceedings exclusively in Texas courts. The employment agreements also incorporated a ‘Policies and Procedures Manual.’ The employment agreements could only be modified with written consent of all parties, but the Manual could be unilaterally modified by the company. Years later, the company amended its Manual to provide for mandatory arbitration.

The Fifth Circuit reversed the district court, finding that the new arbitration clause was unenforceable. First, the court concluded that the jurisdiction and venue clauses in the original employment agreements survived the amendment to the Manual, because there was no written and signed change to the employment agreements themselves and because the company had affirmatively relied on the venue clause (calling for Texas courts) when it transferred the case from California to Texas. And second, the court found that the old and new provisions “cannot be harmonized” without rendering the original agreement meaningless.

There are drafting lessons from these cases: if you want to have mandatory arbitration of disputes, the contract must consistently say that, and if you want to modify existing agreements to add arbitration, make sure to honor any language in the original agreement about how that agreement can be amended or modified and be clear what clauses are replaced or superseded.

Each quote here is a pearl of wisdom – classical and timeless. Look no further to find the heart and soul of effective legal writing. Click on the hyperlink to find the footnotes for each quotation. -CCE

I trust that, after more than 20 years, some of the Plain Language columns are worth reprinting. This one appeared in March 1994. As I noted then, the survey that Mr. Garner mentions in his introduction is the same one that we first did in Michigan, with very similar results. See the October 1987 and May 1990 columns. The judges are identified by their judicial positions when they make their remarks. —JK (Joseph Kimble)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all.

The results of that survey surprised many Texas litigators—and many changed the form of their court papers. But many more have persisted in the old, legalistic style—perhaps out of a fondness akin to what some people feel for the language of the King James Version of the Bible. Judge Lynn Hughes of Houston speaks directly to those litigators: ‘Anyone who thinks Comes now the Plaintiff is anything like the King James Version has no sense of poetry.’

Literary tastes may differ, of course, but it’s worth knowing what judges say—and have been saying for a long time—about the language we lawyers use. Following are some choice quotations I’ve recently collected. —Bryan A. Garner

‘Lawyers spend a great deal of their time shoveling smoke.’ Hon. Oliver Wendell Holmes1, U.S. Supreme Court

‘[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long since disappeared from normal English discourse.’ Hon. Antonin Scalia2, U.S. Supreme Court

‘The reason legal writing has gotten to such a low point is that we have had very bad teachers—judges who wrote years ago and wrote badly. We learned bad habits from them and their opinions in law school.’Hon. William Bablitch3, Supreme Court of Wisconsin

‘[The advocate] will stock the arsenal of his mind with tested dialectical weapons. He will master the short Saxon word that pierces the mind like a spear and the simple figure that lights the understanding. He will never drive the judge to his dictionary. He will rejoice in the strength of the mother tongue as found in the King James version of the Bible, and in the power of the terse and flashing phrase of a Kipling or a Churchill.’ Hon. Robert H. Jackson4, U.S. Supreme Court

‘[A]void as much as possible stilted legal language, the thereins, thereofs, whereinbefores, hereinafters, and what-have-yous. Use English wherever you can to express the idea as well and as concisely as in law or Latin. A healthy respect for the robust Anglo-Saxon appeals more than does the Latin, whether or not it is Anglicized. The home-grown product in this case is better than the imported, not to say smuggled, one.’ Hon. Wiley B. Rutledge5, U.S. Supreme Court

‘Write so that you’re understood. English is a hard language to learn, but it’s an easy language to communicate in. There’s no reason to put Latin in your brief.’ Hon. Craig T. Enoch6, Fifth Court of Appeals, Dallas

‘Don’t use legalese. It causes you to put your contentions in stale ways.’ Hon. Thomas Gibbs Gee7, U.S. Court of Appeals for the Fifth Circuit, 1974-91

‘For a hundred years, good lawyers have been writing without all the garbage and in a simple, direct style.’ Hon. Lynn N. Hughes10. U.S. District Court, Houston

‘A lawyer should write the brief at a level a 12th grader could understand. That’s a good rule of thumb. It also aids the writer. Working hard to make a brief simple is extremely rewarding because it helps a lawyer to understand the issue. At the same time, it scores points with the court.’ Hon. William Bablitch11, Supreme Court of Wisconsin

‘When a judge finds a brief which sets up from twelve to twenty or thirty issues or ‘points’ or ‘assignments of error,’ he begins to look for the two or three, perhaps the one, of controlling force. Somebody has got lost in the underbrush and the judge has to get him—or the other fellow—out. That kind of brief may be labeled the ‘obfuscating’ type. It is distinctly not the kind to use if the attorney wishes calm, temperate, dispassionate reason to emanate from the cloister. I strongly advise against use of this type of brief, consciously or unconsciously. Though this fault has been called over-analysis, it is really a type of under-analysis.’ Hon. Wiley B. Rutledge12, U.S. Supreme Court

‘The key is to make the brief easy for the judge to follow.’ Hon. Lloyd Doggett13, Supreme Court of Texas

‘You want your brief to be as readable as possible . . . . If I pick up a brief of 49 and a half pages, it has a little less credibility than one that succinctly argues its points in 25 pages . . . . There’s nothing better to read than a well-written brief from a really good lawyer.’ Hon. Jerry E. Smith14, U.S. Court of Appeals for the Fifth Circuit

‘Eye fatigue and irritability set in well before page 50.’ Hon. Patricia M. Wald15, U.S. Court of Appeals for the D.C. Circuit

‘A brief should manifest conviction . . . . [That] is virtually impossible . . . if it contains an excessive number of quotations or is larded with numerous citations to the authorities. Short quotations sometimes clinch a point, but long ones fail in that objective.’ Hon. George Rossman16. Supreme Court of Oregon

‘Start in the very first sentence with the problem in this case. Put it right up front. Start early. Don’t bury it under a lot of verbiage and preliminaries.’ Hon. Nathan L. Hecht17, Supreme Court of Texas

‘Style must be regarded as one of the principal tools of the judiciary and it thus deserves detailed attention and repeated emphasis.’ Hon. Griffin B. Bell18, U.S. Court of Appeals for the Fifth Circuit

‘Lawyers are excused from the necessity of interesting their readers, and all too often—let’s face the evidence—they take advantage of this enviable exemption.’ Hon. Jerome Frank19, U.S. Court of Appeals for the Second Circuit

‘Is good writing rewarded? I used to think it doesn’t matter much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don’t even think about it.’ Hon. Murry Cohen20, Fourteenth Court of Appeals, Houston

Bryan A. Garner (bagarner@att.net), president of Dallas-based LawProse, Inc. (www.lawprose.org), is the author of many books on writing, including Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002). He is also editor in chief of all current editions of Black’s Law Dictionary. He teaches at Southern Methodist University School of Law.

In case anyone needed a reminder about the district court’s standard of review in an ERISA case, the U.S. Fifth Circuit recently drove the message home, with some harsh words for the district judge:

It apparently bears repeating here that district courts hearing complaints from disappointed ERISA plan members or their beneficiaries for the administrative denial of benefits are not sitting, as they usually are, as courts of first impression. Rather, they are serving in an appellate role. And, their latitude in that capacity is very narrowly restricted by ERISA and its regulations, as interpreted by the courts of appeals and the Supreme Court, including the oft-repeated admonition to affirm the determination of the plan administrator unless it is “arbitrary” or is not supported by at least “substantial evidence”—even if that determination is not supported by a preponderance. We had thought that by now this was understood and accepted by all district judges of this circuit. But, as this case demonstrates that we were wrong, at least as to one of them, we try yet again to drive that message home.

McCorkle v. Metropolitan Life Ins. Co., No. 13-30745, slip op. at 6–7 (5th Cir. July 3, 2014) (footnotes omitted, emphasis by the court). The opinion goes on to articulate the abuse-of-discretion standard of review applicable in ERISA cases. For anyone who practices in this area, it’s a must-read.

The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges. Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area. After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals. Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth. Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas. After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.

The three panelists offered a number of helpful tips for lawyers practicing before appellate courts. . . .

There must be a virus going around. Recently the Louisiana Supreme Court and the First, Third, and Fifth Circuits have published warnings about malicious e-mails purporting to come from those courts. . . .

Mr. Ruback served as a briefing attorney to the Fort Worth Court of Appeals. Here he shares the common mistakes that are normally seen in appellate writing. Because an appellate court never questions witnesses or hears evidence, the written documents submitted by the parties are all it has upon which to base its ruling. Sloppy and lengthy garbled arguments simply will not do. Mr. Ruback’s comments are worth noting.

I would like to add to Mr. Ruback’s list – neglecting to verify the accuracy of the appellate record while it remains in the jurisdiction of the trial court. It is a simple exercise to compare the record compiled by the trial court clerk using the Designation of Record and Counter-Designation of Record to make sure that the record is accurate.

This may seem a waste of time until the appellate record includes a deposition that was never admitted into evidence or a crucial piece of evidence is overlooked by the court clerk who assembled record for the appeal. No one is perfect; mistakes can happen.

Too often, counsel ignore this simple step. Personally, I would make sure the person you send to check the record put the trial exhibits together and/or was part of the trial team. Or to put it another way – how do you explain to a client that you couldl have avoided the appeal’s fatal flaw if you had checked the record before it was sent up on appeal? -CCE

Mr. Ward gives us a brief overview in these two paragraphs. In the remainder of his post, Mr. Ward expands on his variations for citations in footnotes and the preferences of Fifth Circuit judges I mean no disrespect to Mr. Garner, but if Mr. Ward gives advice on legal writing, I pay attention. -CCE

Who would have thought that, for over 13 years now, the most controversial subject among litigation-oriented legal writers would be the location of legal citations in footnotes versus in text? Back in the spring of 2001, a judge in an intermediate Louisiana appellate court, in writing the majority’s opinion in a case, put her legal citations in footnotes. This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations. So the author wrote her own concurring opinion defending her use of footnotes. The case is Ledet v. Seasafe, Inc., 783 So. 2d 611 (La. App. 3 Cir. 2001). The controversy stirred up by Ledet caught the attention of the New York Times. Here is my own little casenote on Ledet.

Fast-forward 13 years. Bryan Garner writes an article for the ABA Journal recommending the use of footnotes for legal citations—a position he’s held since I took my first Garner seminar in 1998. His fellow Texans Rich Phillips and Jason Steed write blog posts begging to differ. Different decade, pretty much the same debate.

The United States Supreme Court will rule on two cases on whether a warrantless search of cell phones is legal under the Constitution. The U.S. Supreme Court’s decisions will impact Fourth Amendment search and seizure procedures for law enforcement – must police first obtain a search warrant to access the data on an arrestee’s cell phone? May a cell phone and its digital data be used as evidence?

At this time, both federal circuit courts and state supreme courts disagree as to whether the police can search a cell phone without a warrant. The Fourth, Fifth, and Seventh U.S. Court of Appeals, together with the Supreme Courts of Georgia, California, and Massachusetts say yes, they can. The First Circuit Court of Appeals and the Supreme Courts of Florida and Ohio disagree.

The courts are not the only ones paying close attention to the outcome of these two cases. Several organizations and others are concerned about maintaining privacy of digital devices and data. Law enforcement is in favor a final decision allowing warrantless searches on cell phones if there is probable cause.

‘Know your audience’ is a fundamental rule of skillful writing. For lawyers writing briefs in the 21st century, a key part of knowing your judicial audience is knowing what device will display your brief. While some judges print briefs and read the hard copy, a quiet revolution is occurring: more and more judges are reading briefs primarily on iPads or other tablets. According to experts on legal writing, this change in reading should trigger a similarly significant change in writing.

The year 2013 has been a relatively lackluster one for e-discovery case law. Then, on November 12, 2013, the Fifth Circuit Court of Appeals rendered a rare appellate order on sanctions and e-discovery abuse.

Federal courts that handle Texas cases have nine vacancies and until last week, no nominees, accounting for more than 20 percent of empty benches nationwide. One of those came open more than five years ago.

The predictable result: backlogs and delays, especially in civil cases.

“The nuclear option will not change the logjam. The White House is not going to nominate anyone from Texas until it’s clear the senators will approve them,” said Royal Furgeson, dean of the University of North Texas Law School in Dallas, planned to open next year.

He called the persistent vacancies ‘a giant problem,’ and he would know; he’s the judge who stepped down in November 2008 from a San Antonio trial court.